LARRY JAMES KEETON v. CORA ROBERTA KEETON
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RENDERED: DECEMBER 27, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-002332-MR
LARRY JAMES KEETON
APPELLANT
APPEAL FROM LAWRENCE CIRCUIT COURT
HONORABLE STEPHEN N. FRAZIER, JUDGE
ACTION NO. 00-CI-00065
v.
CORA ROBERTA KEETON
APPELLEE
OPINION
AFFIRMING IN PART - REVERSING IN PART AND REMANDING
** ** ** ** **
BEFORE:
GUIDUGLI, HUDDLESTON AND JOHNSON, JUDGES.
GUIDUGLI, JUDGE.
In this dissolution action, Larry James Keeton
(hereinafter “Larry”) has appealed from the October 11, 2001,
final judgment of the Lawrence Circuit Court.
The two main
issues on appeal are whether Cora Roberta Keeton (hereinafter
“Cora”) is entitled to an award of permanent maintenance and
whether Larry, a disabled person receiving Social Security
Disability benefits, should be responsible for the medical bills
of his child once she has reached her majority and graduated from
high school.
Having reviewed the record and the parties’
excellent briefs, we find no error in the award of permanent
maintenance.
However, we hold that the circuit court erred in
requiring Larry to provide health care beyond the age of
majority.
Hence, we affirm in part, and reverse and remand in
part.
Larry and Cora, lifelong residents of the Commonwealth,
were married in Maze, Kentucky on July 16, 1975.
Two children
were born of the marriage: Tammy Lee Keeton, who had reached the
age of majority by the time the dissolution petition was filed,
and Sondra Lee Keeton, whose date of birth is March 5, 1984, and
who was still a minor at the time the dissolution petition was
filed.
In 1995, Larry was awarded Social Security Disability
benefits, and his minor children also were awarded Social
Security benefits.
Larry and Cora separated in January 1997, and Larry
filed a Petition for Dissolution of Marriage on March 31, 2000.
The action went before the DRC, who decided the case based upon
the short depositions of Larry and Cora.
On October 11, 2001,
the circuit court adopted the DRC’s recommendations, which we
shall set out as follows:
FINDINGS OF FACT:
l.
Petitioner, LARRY JAMES KEETON, is
forty-six (46) years of age, born May
16, 1955, and resides at HC 69 Box 182,
Martha, Lawrence County, Kentucky.
2
Respondent, CORA ROBERTA KEETON, is
forty-five (45) years of age, [born]
January 19, 1956, and resides at HC
75 Box 225, Martha, Lawrence County,
Kentucky.
3.
Petitioner and Respondent are
residents of the Commonwealth of
Kentucky and have been residents
hereof for not less than 180 days
next preceding the filing of the
petition.
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4.
Petitioner is disabled and receives
monthly Social Security Disability
benefits in the amount of $1,120.00.
5.
Respondent is unemployed.
6.
Petitioner and Respondent were married
July 16, 1975, in Lawrence County,
Kentucky, where said marriage is
registered.
7.
Petition and Respondent separated [in]
January 1997, and have remained separate
and apart since that date.
8.
Two (2) children were born of the
marriage, one (1) of which remains a
minor, SONDRA LEE KEETON, born March 5,
1984.
9.
To the best of Respondent’s present
knowledge and belief, she is not now
pregnant.
10. Neither party to this action is an
active member of the military.
11. The conciliation provisions of KRS
403.170 do not apply.
12. The marriage between Petitioner and
Respondent is irretrievably broken;
there being no prospect of a
reconciliation.
13. Petitioner and Respondent accumulated
the following marital estate: 1) 1992
Pontiac.
14. Petitioner and Respondent accumulated
marital debt.
15. Respondent requests custody of the
parties’ minor child.
16. The parties’ minor child receives Social
Security benefits in the amount of
$585.00 per month from Petitioner’s
Social Security Disability.
17. Respondent[] requests an award of
maintenance.
18. Respondent has a sixth (6th) grade
education with extremely limited
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abilities to read and write. Respondent
has never had a driver’s license.
19. Respondent never worked outside the home
and performed the duties of a housewife
and mother during the twenty-six (26)
year marriage. Respondent has no
monthly income of her own other than
$207.00 per month food stamps.
20. Respondent lacks sufficient property to
provide for her reasonable needs and is
unable to support herself through
appropriate employment.
CONCLUSIONS OF LAW:
Having made the foregoing Findings of
Fact, the Court issues the following
Conclusions of Law:
1.
The marriage between LARRY JAMES KEETON
and CORA ROBERTA KEETON, being
irretrievably broken, a Decree of
Dissolution of Marriage, Order and
Judgment should enter.
2.
Petitioner should be awarded the 1992
Pontiac.
3.
Petitioner should assume and be
responsible for marital debts.
4.
Petitioner and Respondent should be
responsible for debts contracted in
their respective names subsequent to
January 1997.
5.
Respondent should be awarded custody of
the parties’ minor child.
6.
Petitioner should be awarded standard
visitation with the parties’ minor
child.
7.
Petitioner should pay child support.
8.
Petitioner and Respondent should provide
healthcare for the parties’ minor child.
9.
Respondent should be awarded
maintenance.
DECREE OF DISSOLUTION OF MARRIAGE
ORDER AND JUDGMENT:
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Having made the foregoing Findings of
Fact and Conclusions of Law, the Court enters
the following Decree of Dissolution of
Marriage, Order and Judgment:
DECREE OF DISSOLUTION OF MARRIAGE:
1.
The marriage between LARRY JAMES KEETON
and CORE ROBERTA KEETON entered into on
the 16th day of July 1975, is HEREBY
DISSOLVED and each party is restored to
the status of an unmarried person.
ORDER AND JUDGMENT:
1.
Respondent is awarded Custody of the
parties’ minor child, Sondra Lee
Keeton.
2.
Petitioner is awarded standard
visitation with the parties’ minor child
pursuant to the 24th Judicial Circuit
Standard Visitation Guidelines.
3.
The minor child’s receipt of Social
Security benefits in the amount of
$585.00 per month from Petitioner’s
Social Security Disability shall
serve and satisfy Petitioner’s child
support obligation.
4.
Petitioner shall have the financial
responsibility for providing health
care, payment of deductibles and copayments, for the parties’ minor
child(ren), if health care is
available through his employer at
reasonable cost. In the event
health care is not available through
the Petitioner’s employer at
reasonable cost, then the Respondent
shall have the financial
responsibility for providing health
care, if health care is available
through her employer at reasonable
cost. The obligation of the party
providing health care shall extend
beyond the age of majority, to any
unmarried child up to the age of
twenty-five (25) years of age who is
a full-time student enrolled in an
accredited educational institution,
and who is primarily dependent on
the insured parent for maintenance
and support.
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The cost of extraordinary medical
expenses shall be allocated between
the Petitioner and Respondent in
proportion to their adjusted gross
incomes or percentage of their
combined incomes, as set forth in
the most current Child Support
Worksheet in this case.
“Extraordinary Medical Expenses”
means, uninsured expenses in excess
of $100.00 per calendar year per
child. “Extraordinary Medical
Expenses” includes, but is not
limited to, the costs that are
reasonably necessary for medical,
surgical, dental, orthodontal,
optical, nursing, and hospital
services; for professional
counseling or psychiatric therapy
for diagnosed medical disorders; and
for drugs, and medical supplies,
appliances, laboratory, diagnostic,
and therapeutic services.
In the event health care is not
available through either the
employer of the Petitioner or
Respondent, then either party must
obtain health care at the time it
becomes available through their
employer at reasonable cost. In any
case administered by the Cabinet for
Human Resources, if the Petitioner
or Respondent is enrolled through an
insurer but fails to enroll the
child in family coverage, the other
party, or the Cabinet for Human
Resources, may, upon application,
enroll the child(ren).
5.
Petitioner is awarded the 1992
Pontiac free and clear of all claims
of the Respondent. Petitioner shall
assume all incidents of liability
relative to the ownership thereof
and hold the Respondent harmless.
6.
Petitioner shall assume and be
responsible for all marital debt.
7.
Petitioner shall assume and be
responsible for debts contracted in
his individual name subsequent to
January 1997.
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8.
Respondent shall assume and be
responsible for debts contracted in her
individual name subsequent to January
1997.
9.
Respondent is awarded Maintenance.
10. Effective September 1, 2001, Petitioner
shall pay to the Respondent, maintenance
in the amount of FOUR HUNDRED DOLLARS
($400.00) per month, due and payable on
or before the fifth (5th) day of each
month and continuing thereafter until
further Orders of the Court or the same
is terminated by operation of Kentucky
law.
11. Each party is responsible for payment of
their respective attorney fees and Court
costs.
In addition, the circuit court’s order overruled Larry’s
exceptions to the DRC’s recommendations as well as his motion for
further findings.
This appeal followed.
In his brief, Larry argues that there is insufficient
evidence in the record to support an award of maintenance of
$400.00 per month and that the circuit court abused its
discretion in making the award.
In particular, he argues that
Cora is unemployed and unable to drive purely by choice, that the
circuit court failed to consider the relevant factors contained
in KRS 403.200(2), including standard of living and Cora’s income
from all sources, and that Cora only wants to punish Larry.
Additionally, Larry argues that additional findings of fact could
have established that there was no evidence to support an award
of maintenance and that the circuit court erred in requiring him
to be responsible for his child’s medical expenses once she had
reached the age of majority and graduated from high school.
He
cites Youngblood v. James, Ky. App., 883 S.W.2d 512 (1994), to
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support his proposition that a disabled individual with
Supplemental Security Income as his sole income source cannot be
required to pay his child’s medical bills or support.
On the other hand, Cora argues that she is indeed
entitled to an award of maintenance.
She cites their lengthy
marriage during which she acted as a homemaker and raised their
two daughters, her 6th grade education and limited ability to
read and write, her lack of income other than $207.00 in food
stamps per month, and her lack of job training.
She also argues
that additional findings of fact would not have changed the
outcome.
Lastly, Cora points out that the Youngblood decision
dealt with a prior version of the child support statute, KRS
403.212, which was later amended to include Supplemental Security
Income as income.
Larry first argues that the circuit court abused its
discretion in awarding maintenance.
Our standard of review
regarding an award of maintenance is that of abuse of discretion.
“The amount and duration of maintenance is within the sound
discretion of the trial court.
Gentry v. Gentry, Ky., 798 S.W.2d
928, 937 (1990); Combs v. Combs, Ky.App., 622 S.W.2d 679, 680
(1981), citing KRS 403.200(2) and Browning v. Browning, Ky.App.,
551 S.W.2d 823 (1977).”
Russell v. Russell, Ky.App., 878 S.W.2d
24, 26 (1994).
Furthermore, we are mindful that in matters
of such discretion, "unless absolute abuse is
shown, the appellate court must maintain
confidence in the trial court and not disturb
the findings of the trial judge." Clark v.
Clark, Ky.App., 782 S.W.2d 56, 60 (1990).
(Emphasis added.) See also Platt v. Platt,
Ky. App., 728 S.W.2d 542 (1987), and Moss v.
Moss, Ky.App., 639 S.W.2d 370 (1982).
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Weldon v. Weldon, Ky.App., 957 S.W.2d 283, 285-86 (1997).
The legislature set out the requirements for an award
of maintenance in KRS 403.200 as follows:
403.200 Maintenance; court may grant order
for either spouse
(1)
In a proceeding for dissolution of
marriage or legal separation, or a
proceeding for maintenance following
dissolution of a marriage by a court
which lacked personal jurisdiction over
the absent spouse, the court may grant a
maintenance order for either spouse only
if it finds that the spouse seeking
maintenance:
(a)
(b)
(2)
Lacks sufficient property,
including marital property
apportioned to him, to provide for
his reasonable needs; and
Is unable to support himself
through appropriate employment or
is the custodian of a child whose
condition or circumstances make it
appropriate that the custodian not
be required to seek employment
outside the home.
The maintenance order shall be in such
amount and for such periods of time as
the court deems just, and after
considering all relevant factors
including:
(a)
The financial resources of the
party seeking maintenance,
including marital property
apportioned to him, and his ability
to meet his needs independently,
including the extent to which a
provision for support of a child
living with the party includes a
sum for that party as custodian;
(b)
The time necessary to acquire
sufficient education or training to
enable the party seeking
maintenance to find appropriate
employment;
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(c)
The standard of living established
during the marriage;
(d)
The duration of the marriage;
(e)
The age, and the physical and
emotional condition of the spouse
seeking maintenance; and
(f)
The ability of the spouse from whom
maintenance is sought to meet his
needs while meeting those of the
spouse seeking maintenance.
We believe that the circuit court was justified in
awarding Cora maintenance in the amount of $400.00 per month and
that the record supports this award.
At the time the marriage
was dissolved, Larry and Cora had been married for twenty-six
years.
Cora had never worked outside the home and had performed
the roles of homemaker and mother.
Although she had a 6th grade
education, she had an extremely limited ability to read and write
and had never learned to drive or obtained a driver’s license.
Her sole monthly income was $207.00 in food stamps.
Additionally, Larry was awarded the only item of marital
property, namely, the 1992 Pontiac.
Therefore, it is clear that
she did not have sufficient property to provide for her
reasonable needs.
Robbins v. Robbins, Ky.App., 849 S.W.2d 571
(1993); Carter v. Carter, Ky.App., 656 S.W.2d 257 (1983).
We also cannot agree with Larry’s contention that
because Cora is unemployed, she is therefore not entitled to an
award of maintenance.
Larry argues that Cora is voluntarily
unemployed, and that he should not be required to pay maintenance
when she should be able to find employment.
Based upon the facts
of this case, we are unable to agree with his contention.
Sayre v. Sayre, Ky.App., 675 S.W.2d 647 (1984), the wife, a
In
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registered nurse, admitted that she could earn substantially more
money if she found other employment in a hospital or some other
setting, but that she wanted to stay at her current lower paying
employment because it ensured stability.
Because the matter was
a personal choice on her part, the circuit court’s decision not
to award maintenance was upheld.
In Owens v. Owens, Ky.App., 672
S.W.2d 67 (1984), James presented the argument that because Lynne
refused to obtain employment, the trial court awarded her less
marital property.
Lynne had worked as a secretary during the
early years of their marriage.
However, we concluded that the
refusal to obtain employment “is not to be used in determining
the division of marital property, but a factor in determining
whether maintenance should be awarded.”
Id. at 70.
In the
present case, the circuit court considered the fact that Cora was
unemployed and also made several findings regarding her
educational background, deficiencies in her reading and writing
skills, and lack of a driver’s license.
In light of the
combination of factors in this case, Cora is entitled to an award
of maintenance.
Although we are mindful that Larry is on a fixed income
of $1,120.00 per month in Social Security Disability benefits and
must be responsible for his own expenses, we agree with Cora’s
argument that this is a factor for the circuit court to consider
in determining whether to award maintenance.
Here, the circuit
court was clearly attempting to balance the needs of the two
individuals involved, one with an income of $1,120.00 per month
and the other with an income of $207.00 per month in food stamps.
We believe that the circuit court properly considered the factors
-11-
set forth in KRS 403.200 and did not abuse its discretion in
either awarding permanent maintenance or fixing the amount at
$400.00 per month.
Larry next argues that the circuit court erred in
denying his motion for further findings of fact.
He had
requested that the circuit court make further findings regarding
why Cora was unable to support herself, what type of work she
could perform, what wages should be imputed to her, the standard
of living prior to their separation, and Larry’s ability to meet
his own needs.
However, we agree with Cora’s argument that there
were sufficient findings of fact to justify the award of
maintenance and that further findings would not have changed the
result.
Lastly, Larry argues that the circuit court erred in
ordering him to pay his child’s medical expenses after she
reached the age of majority as he is disabled and will never be
employable.
As pointed out in Cora’s brief, the circuit court
was required by statute to include specific language regarding
the provision of health care.
KRS 403.211(7) provides, in part,
that:
KRS.
403.211
. . . .
(7)
. . . .
(c) The court shall order the cost
of health care of the child to be
paid by either or both parents of
the child regardless of who has
physical custody. The court order
shall include:
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1. A judicial directive
designating which parent
shall have financial
responsibility for
providing health care for
the dependent child,
which shall include, but
not be limited to,
insurance coverage,
payments of necessary
health care deductibles
or copayments; and
2. A statement providing
that if the designated
parent’s health care
coverage provides for
covered services for
dependent children beyond
the age of majority, then
any unmarried children up
to twenty-five (25) years
of age who are full-time
students enrolled in and
attending an accredited
educational institution
and who are primarily
dependent on the insured
parent for maintenance
and support shall be
covered.
(d) If health care insurance
coverage is not reasonable and
available at the time the request
for the coverage is made, the court
order shall provide for health care
insurance coverage at the time it
becomes reasonable and available.
(8) The cost of extraordinary medical
expenses shall be allocated between the
parties in proportion to their combined
monthly adjusted parental gross incomes.
"Extraordinary medical expenses" means
uninsured expenses in excess of one hundred
dollars ($ 100) per child per calendar year.
"Extraordinary medical expenses" includes,
but is not limited to, the costs that are
reasonably necessary for medical, surgical,
dental, orthodontal, optometric, nursing, and
hospital services; for professional
counseling or psychiatric therapy for
diagnosed medical disorders; and for drugs
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and medical supplies, appliances, laboratory,
diagnostic, and therapeutic services.
Based upon the statute, Larry should not be responsible for
providing health care but only health care coverage for his
daughter until her twenty-fifty birthday.
However, it appears
that the court omitted a word in the order and judgment.
In the
first paragraph of section 4, the DRC states that “the obligation
of the party providing health care shall extend beyond the age of
majority, to any unmarried child up to the age of twenty-five
(25) years of age who is a full-time student enrolled in an
accredited educational institution, and who is primarily
dependent on the insured parent for maintenance and support.”
The statute provides only that the designated parent must
maintain health care coverage up to the age of 25.
403.211(7)(c)(2).
KRS
Here, the order requires Larry to provide
health care to his daughter past the age of 18, which is in
contravention to the statute.
Therefore, the circuit court erred
in requiring Larry to provide health care for Sondra past the age
of 18.
For the foregoing reasons, the judgment is affirmed in
part, and reversed in part and this case is remanded for
correction of the order and judgment consistent with this
opinion.
HUDDLESTON, JUDGE, CONCURS.
JOHNSON, JUDGE, DISSENTS AND FILES SEPARATE OPINIONS.
JOHNSON, JUDGE, DISSENTING: I respectfully dissent on
both issues before this Court.
As to the award of maintenance, I
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believe the trial court failed to follow the statutory mandates
of KRS 403.200; the case law, such as Dotson v. Dotson,1 Cochran
v. Cochran,2 and Garrett v. Garrett;3 and CR 52.04 by not making
the required findings to support a maintenance award.
In Larry’s
CR 52.04 motion, he specifically asked the trial court to make
the following findings of fact:
1. Findings as to why the Respondent is
unable to support herself through appropriate
employment.
2. Findings as to what type of work the
Respondent can perform.
3. Findings as to what wages or salary that
should be imputed to the Respondent.
4. Findings as to the standard of living
established for the Petitioner and Respondent
prior to their separation in January 1997.
5. Findings as to the Petitioner’s ability
to meet his own needs from his Social
Security Disability Benefits.
6. If the Respondent is entitled to any
maintenance, this Court should make a
Findings [sic] of Fact as to the length of
time it would take for her to become selfsufficient.
7. A findings [sic] of fact as to the
Respondent’s income after January 1997 until
to [sic] date.
Clearly, these findings are necessary to justify an
award of maintenance.
While Cora only has a sixth-grade
education and has extremely limited abilities to read and write,
and does not have a driver’s license or any previous work
1
Ky., 864 S.W.2d 900, 902-03 (1993).
2
Ky.App., 746 S.W.2d 568, 570 (1988).
3
Ky.App., 766 S.W.2d 634, 636 (1989).
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experience; she was only 45 years old at the time of the decree,
she had worked as a homemaker for 26 years, and she was in good
health.
It was an abuse of discretion for the trial court to
award Cora maintenance without making the required specific
factual finding concerning her ability to work.4
While Cora’s
job prospects may be very limited, it would appear that she could
earn at least minimum wage by performing housekeeping services or
other manual labor.
Meanwhile, Larry has been determined to be
totally disabled from substantial gainful employment.
It was
also an abuse of discretion for the trial court to award Cora
maintenance without making the required specific factual finding
concerning Larry’s ability to meet his own needs while paying
maintenance to Cora.5
The trial court’s award should be vacated
and this matter should be remanded for the required factual
findings.
As to the health care coverage for 18-year-old Sondra,
once again the trial court has clearly failed to follow the
statutes.
KRS 403.211(7)(c)(2) requires the court order to
include “[a] statement providing that if the designated parent’s
health care coverage provides for covered services for dependent
children beyond the age of majority, then any unmarried children
up to twenty-five (25) years of age who are full-time students
enrolled in and attending an accredited educational institution
and who are primarily dependent on the insured parent for
maintenance and support shall be covered.”
The judgment should
4
KRS 403.200(1)(b); Cochran, supra.
5
KRS 403.200(2)(f); Dotson, supra; Garrett, supra.
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be vacated and this matter should be remanded for the proper
inclusion of the statutorily mandated provisions.
The Majority
Opinion fails to squarely address this issue.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Lowell B. Spencer
Paintsville, KY
Lana Gresham
Lincoln Harris
Prestonsburg, KY
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